Ex Parte Lubbers et alDownload PDFPatent Trial and Appeal BoardApr 23, 201411771411 (P.T.A.B. Apr. 23, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte CLARK EDWARD LUBBERS and STEPHEN J. SICOLA ____________ Appeal 2011-008079 Application 11/771,411 Technology Center 2100 ____________ Before ST. JOHN COURTENAY III, THU A. DANG, and CARL W. WHITEHEAD JR., Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2011-008079 Application 11/771,411 2 Appellants have filed a Request under 37 C.F.R. § 41.52(a)(1) requesting that we reconsider our Decision of January 22, 2014, wherein we: A. reversed the Examiner’s rejection of claims 1-3, 5-11, 14, 16, 17, 19, and 20 which stood rejected under 35 U.S.C. § 112, first paragraph, for failing to comply with the written description requirement;1 B. reversed the Examiner’s rejection of claims 1-3, 5-11, 14, 16, 17, 19, and 20 which stood rejected under 35 U.S.C. § 112, second paragraph, for being indefinite; C. affirmed the Examiner’s rejection of claims 1, 5, 6, 8-11, 14, 16, 17, 19, and 20 which stand rejected under 35 U.S.C. § 102(b) as being anticipated by Horn (U.S. Patent No. 7,162,582 B2) (hereinafter “Horn ʼ582”); D. affirmed the Examiner’s rejection of claim 2 which stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Horn ʼ582 in view of Horn (U.S. Patent Application Publication No. 2005/0050273 A1) (hereinafter “Horn ʼ273”); E. affirmed the Examiner’s rejection of claim 3 which stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Horn ʼ582 in view of Zelikov (U.S. Patent Application Publication No. 2007/0157002 A1); and F. affirmed the Examiner’s rejection of claim 7 which stands rejected under 35 U.S.C. § 103(a) as allegedly being unpatentable over Horn ʼ582 in view of Jiang (U.S. Patent No. 6,453,354 B1). 1 Our reversal of rejections A and B in our Decision is not addressed in the Request. Appellants contest the basis for §102 rejection C (claim 1) in the Request (1-5). Appeal 2011-008079 Application 11/771,411 3 We have reconsidered our Decision in light of Appellants’ contentions in the Request, and have found no errors. We, therefore, decline to change the Decision. Appellants’ request is denied for the reasons discussed infra. STATEMENT OF THE CASE Appellants’ claimed invention is “directed to an apparatus and method for aggregating storage elements.” (Spec. 1, ll. 14-15). Independent claim 1, reproduced below with contested limitations emphasized, is representative of the subject matter on appeal: 1. An apparatus comprising: a plurality of storage elements each comprising an array of data storage devices; a virtual storage space mapped across the plurality of storage elements, each storage element managing a bottom level map of respective portions of the virtual storage space; and a virtual controller comprising a first storage element aggregator (SEA) that indexes a top level map in response to receipt by the first SEA of a first host command associated with the virtual storage space to aggregate a set of two or more of the plurality of storage elements that each manage a portion of the virtual storage space associated with the first host command, and that issues data transfer commands to each of the aggregated storage elements to execute the first host command. DISCUSSION Regarding the contested limitation “a virtual storage space mapped across the plurality of storage elements,” Appellants’ argument on rehearing is summarized in the Request: Appeal 2011-008079 Application 11/771,411 4 The Board points to Horn’s virtual volume that includes a plurality of different and individually mapped logical volumes. The Board concludes that allegedly identically discloses a virtual storage space mapped across the plurality of storage elements . . . as featured by claim 1. The skilled artisan recognizes that is an erroneous reading because that reading does not limit claim 1 to its plain meaning - at least one virtual storage space being mapped across more than one storage element. Horn clearly discloses each of its two different logical volumes is individually mapped to only one storage element. Horn does disclose a virtual volume 1 as viewed by the virtualizer module 1, and that virtual volume 1 includes the two different and individually mapped logical volumes. However, the skilled artisan understands that Horn’s “virtual volume that includes two different logical volumes” does not identically disclose a virtual storage space mapped across the plurality or storage elements as featured by claim 1. (Request 4-5 (emphasis in original omitted, emphasis added)). As previously addressed in our Decision (at 7), Horn describes an embodiment of a striped RAID system where a virtual volume 1 consists of two data stripes (logical volumes) which are stored on different physical storage elements (460, 295)(Fig. 4): Virtualization module 1 220 recognizes that virtual volume 1 includes a stripe across a logical volume residing on storage element 460 and a logical volume residing on storage element 295. For this example, a small portion of the data requested by host 1 210 resides at the end of the stripe on storage element 460 and the majority of the data resides in the stripe on storage element 295. (Horn ʼ582, col. 7, ll. 20-26 (emphasis added); see also App. Br. 13). While Horn discloses physical RAID controller 1 (260) is mapped directly to physical storage element 295 and physical RAID controller 3 (430) is mapped directly to physical storage element 460, we broadly but Appeal 2011-008079 Application 11/771,411 5 reasonably read the contested claim limitation (“virtual storage space mapped across the plurality of storage elements”) on the layer of abstraction and storage virtualization provided by Horn’s striped RAID system which hides the internal functions of the storage subsystem from the host system (applications, servers, and the like) which accesses it, as explained in general terms by Horn: Striping is another aspect of RAID and is the process of breaking up consecutive lines of data and writing them on more than one drive. When the data needs to be accessed, all of the drives that contain a piece of the data may simultaneously send their portion to the requesting controller. The controller then arranges the data from each of the drives in order and sends it to the requesting host. However, it is inefficient for hosts to be required to keep track of the various logical and physical combinations, so a layer of abstraction is needed. This layer of abstraction is the concept of storage virtualization. Storage virtualization hides the internal functions of a storage subsystem or service from applications, computer servers, or general network resources for the purpose of enabling application and network independence from the management of storage or data. In a virtualized SAN architecture, hosts request access to virtual volumes, which may consist of any number of storage elements controlled by any number of RAID controllers. This allows for much greater flexibility in storage resource management, and allows volume size, performance, and reliability to change as users’ needs change. The virtualization layer is usually formed of virtualizer elements whose function is to translate virtual volume requests into logical volume requests and send those requests to the corresponding storage controllers. (Horn ’582, col. 1, l. 58 – col. 2, l. 16). As described by Horn ʼ582, at column 7, lines 20-26, the Virtualization module 1 220 processes and caches commands and thus Appeal 2011-008079 Application 11/771,411 6 provides the interface to enable host (210) to read and write data while the internal functions of the striped RAID subsystem are hidden by the layer of abstraction. Therefore, we disagree with Appellants’ contention that “the skilled artisan understands that Horn’s ‘virtual volume that includes two different logical volumes’ does not identically disclose a virtual storage space mapped across the plurality or storage elements as featured by claim 1.” (Request 4-5 (emphasis omitted)). We find Horn’s striped RAID system (Fig. 4) which relies on a plurality of striped data portions (logical volumes) that are respectively stored on different physical storage devices (460, 295), where the logical volumes (striped data portions) collectively form a virtual volume, is a virtual storage space being mapped across more than one storage element, within the meaning of claim 1. Moreover, Appellants’ claim 1 is directed to an apparatus. As a matter of claim construction, we conclude the contested limitation of “a virtual storage space mapped across the plurality of storage elements” is directed to an abstraction (virtual mapping) and/or functional language (mapping). Thus, we conclude the contested limitation does not further limit the structure of the claimed apparatus. Our reviewing court guides that the patentability of an apparatus claim “depends on the claimed structure, not on the use or purpose of that structure.” Catalina Marketing Int’l. Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); see also Superior Industries v. Masaba, 2013-1302, 2014 WL 163046 at *5 (Fed. Cir. Jan. 16, 2014) (Rader, J., concurring) (“[A] system claim generally covers what the system is, not what the system does. Hewlett-Packard Co. Appeal 2011-008079 Application 11/771,411 7 v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990); see also Roberts v. Ryer, 91 U.S. 150, 157 [] (1875) (‘The inventor of a machine is entitled to the benefit of all the uses to which it can be put, no matter whether he had conceived the idea of the use or not.’). Thus, it is usually improper to construe non-functional claim terms in system claims in a way that makes infringement or validity turn on their function. Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075, 1091 (Fed. Cir. 2009).”).2 We find this reasoning applicable here, as Appellants urge the claimed apparatus (structure) is patentably distinguished over the prior art structure (Horn ’582, Fig. 4) based solely on a non-structural abstract and/or functional limitation. See Claim 1; Request 3-5. CONCLUSION We have granted Appellants’ request to the extent that we have reconsidered our Decision, but we deny Appellants’ request to make any changes in our Decision. On this record, we are not persuaded the Examiner’s claim interpretation is overly broad or unreasonable. It is our view that Appellants have not identified any points the Board has misapprehended or overlooked. 2 Superior Industries v. Masaba is a non-precedential opinion of the Court of Appeals for the Federal Circuit. However, we consider the concurring opinion by Chief Judge Rader as guiding because it cites precedential authority in support. Appeal 2011-008079 Application 11/771,411 8 DECISION We have granted Appellants’ request to the extent that we have reconsidered our Decision, but we deny the request with respect to making any changes therein. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See also 37 C.F.R. § 41.52(b). REHEARING DENIED msc Copy with citationCopy as parenthetical citation